November 05, 2018

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January 21, 2019

A bill expanding the Indiana Attorney General’s ability to intervene in certain settlements that do not involve constitutional issues cleared a Statehouse committee Monday on a party-line vote.

Senate Bill 270, authored by Sen. Eric Koch, R-Bedford, would give the Attorney General’s office standing to intervene in the resolutions to a lawsuit against a local unit of government that involves an injunction, restraining order or consent decree. Already the Attorney General has the power to intervene in constitutional issues but has no ability to join in matters that do not exceed constitutional limits but still affect the public interest.

The bill passed the Senate Committee on Civil Law on a 6-2 vote. Neither Democrat on the committee, Sens. Greg Taylor and Lonnie Randolph, voted for the measure.

“It allows the Attorney General to come in and ensure that legislative intent has not been circumvented by a settlement involving two parties who are not necessarily adversarial,” Koch said after the hearing.

As an example of the need for such legislation, Koch pointed to the Attorney General’s attempt to intervene in a settlement between the American Civil Liberties Union of Indiana and the Marion County Sheriff’s Department over detaining immigrants for the federal government.

Indiana Attorney General Curtis Hill filed a motion to intervene in the case, Antonio Lopez-Aguilar v. Marion County Sheriff’s Department et al., 1:16-cv-2457. Hill argued the decree impacts the state’s ability to enforce its own statutes.

However, Judge Sarah Evans Barker of the U.S. District Court for the Southern District of Indiana denied the motion. In part, the court found the state lacked standing because it could not show it suffered an injury-in-fact that is redressable by a favorable ruling. Hill has since filed a notice of appeal to the 7th Circuit Court of Appeals.

With his legislation, Koch said the Attorney General would not have to fight for standing in such cases. SB 270, he continued, follows the process in the statute for constitutional challenges by allowing the state to intervene and defining what the Attorney General is permitted to do.

Koch’s original bill would have required the Attorney General to consent to such settlements but an amendment removed the obligation and gave the state the choice about whether to intervene.

The amendment brought the support of the Indiana Attorney General. The office’s chief deputy Aaron Negangard echoed Koch, saying the amended version allows the state’s interest to always be taken into account and not be subverted by a consent decree.

Still Randolph, D-East Chicago, was troubled that the state would potentially intervene in an agreement worked out between two parties. He saw the bill as giving the Attorney General “broad powers” beyond what the office currently has that could stop a settlement.

Those concerns were shared by the Indiana Association of Cities and Towns, represented by Lindsey Moss, assistant government affairs director. However, Koch maintained there might be a need for the Attorney General to step in if the resolution impacted state interests.

“The intent is to protect the prerogatives of the legislative branch to set state policy,” Koch said of his bill.

Another amendment removed provisions that would have prohibited a state employee form directing settlement proceeds to third parties who were not directly involved in the civil action. Koch said that language was removed because Indiana already has some of those prohibitions in place.

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Marilyn Odendahl covers the Indiana General Assembly as well as law schools and bar associations across the state for the Indiana Lawyer. Prior to joining the Indiana Lawyer, she was a reporter for nearly eight years at The Elkhart Truth, in Elkhart, Ind., where she primarily covered business. She holds degrees from Ball State University and the University of Louisville.